Opinion
14-P-1588
11-18-2015
COMMONWEALTH v. REGINALD REMY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of operating a motor vehicle while under the influence of alcohol, alleging that the judge below committed reversible error by allowing the arresting officer to testify to his qualifications as a drug recognition expert (DRE). For the reasons that follow, we disagree, and therefore affirm.
Background. In the early morning hours of August 20, 2011, Detective Sutherland of the Natick police department observed a dark colored sedan traveling approximately sixty-five to seventy miles per hour in an area with a posted speed limit of forty-five miles per hour. The detective activated his cruiser's blue lights and stopped the sedan in the breakdown lane. The operator of the vehicle identified himself as Reginald Remy, the defendant, and produced his driver's license and vehicle registration. While speaking with the defendant, Detective Sutherland noticed that his "speech appeared thick, his eyes were glassy and bloodshot, and . . . there was a strong odor of alcoholic beverage that was emanating from inside of the vehicle."
After further conversation, the defendant admitted that he had consumed "a beer and a shot of Captain." The detective then asked the defendant to step out of the vehicle and to perform field sobriety tests. The defendant was appropriately instructed on how to perform the tests. While administering the so-called "walk and turn" test, the detective observed that the defendant did not walk heel to toe as instructed, and that he took the wrong number of steps. The detective observed during the so-called "one-legged stand" test that the defendant was unable to lift his foot for more than a few seconds without losing his balance. Based on the detective's observations of the defendant's operation of the vehicle, his glassy eyes, the odor of alcohol while seated in the vehicle, and his performance on the field sobriety tests, the detective formed the opinion that the defendant was intoxicated.
Prior to trial, the defendant filed a motion in limine to preclude Detective Sutherland from testifying to his training and experience as a DRE. The defendant asserted that the detective's background, certification, and familiarity with protocols in drug recognition were not relevant to any live issue in the case because there was no allegation that the defendant was under the influence of any substance other than alcohol. In addition, the defendant claimed that evidence offered regarding DRE protocols did not meet the requirements of scientific reliability under the Daubert-Lanigan standard. Following a voir dire, the judge denied the defendant's motion in limine and, at trial, the jury heard evidence of the detective's background and expertise in drug recognition.
Detective Sutherland attended a two-week course on drug recognition, which trains law enforcement officers to detect drug impaired drivers. He was certified as a DRE in 2008 and recertified in 2010 and 2012.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994).
Discussion. "[A]n opinion regarding a defendant's sobriety is a lay opinion, not an expert opinion." Commonwealth v. Canty, 466 Mass. 535, 541 (2013). See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013). A police officer may testify to a defendant's apparent intoxication without laying any foundation for expertise because, unlike opinions based on scientific methods, the foundation for testimony regarding sobriety falls within the common experience and knowledge of jurors. See Commonwealth v. Sands, 424 Mass. 184, 187 (1997) (contrasting scientific Horizontal Gaze Nystagmus (HGN) test from ordinary field sobriety tests; HGN test is based on underlying scientific assumptions not within jurors' common experience). On the other hand, where a witness's opinion is based upon scientific, technical, or other specialized knowledge, the party offering that testimony must overcome a threshold inquiry into the reliability of the principles and methods relied upon by the expert. Compare Mass. G. Evid. § 702 (2015) (testimony by expert witnesses), with id. at § 701 (opinion testimony by lay witnesses).
Detective Sutherland testified only to the defendant's apparent alcohol intoxication. He relayed to the jury his conclusion that the defendant was intoxicated, based only upon the defendant's admission that he had been drinking and the detective's personal observations of the defendant in the vehicle and during the field sobriety tests. "[O]rdinary field sobriety tests . . . measure a person's sense of balance, coordination, and acuity of mind in understanding and following simple instructions. A lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from common experience and knowledge." Commonwealth v. Sands, supra. Detective Sutherland did not claim to have applied any scientific principles or methods to reach his conclusion. His lay opinion as to the defendant's sobriety was plainly admissible.
The defendant's objection to Detective Sutherland's testimony about his qualifications as a DRE is based on a concern that it misled the jury into thinking that drugs were involved in the case and may have contributed to the defendant's impairment. However, on cross-examination, Detective Sutherland stated unequivocally that there was no evidence that the defendant ingested any drugs. Furthermore, Sutherland's qualification as a DRE was relevant because he explained that part of the DRE training involves the administration of field sobriety tests. The facts that Detective Sutherland not only was trained in the proper administration of field sobriety tests at the police academy, but underwent similar training in order to be certified as a DRE in 2008, and again in 2010 and 2012 in order to be recertified, were highly relevant to the jury's assessment of his testimony about the defendant's performance on these tests.
During a pretrial voir dire hearing, Detective Sutherland explained in detail the interrelationship between the training he received to administer field sobriety tests for alcohol detection and the training he received to administer field sobriety tests for purposes of drug recognition.
The defendant also argues for the first time on appeal that the judge erred when she gave an expert witness instruction that included Detective Sutherland. Although the judge erroneously described both the Commonwealth's ballistics witness and Detective Sutherland as "experts," she confined her instruction with reference to Detective Sutherland to his testimony about his DRE training. In the circumstances, taking into account the strength of the Commonwealth's case, the absence of any reference to Detective Sutherland as an expert witness in the prosecutor's closing argument, the judge's instructions as a whole (emphasizing that the credibility of every witness was entirely a matter for the jury), and the defendant's failure to object, we are not persuaded that this error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 350-351 (2003).
There was a basis for an expert witness instruction because the defendant also was charged with (though acquitted of) firearm offenses, and the Commonwealth offered expert opinion testimony relating to ballistics.
Judgment affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 18, 2015.